AMBIKA PANDEY Vs. GOKUL PANDEY

JUDGEMENT

(1.) This is a reference made under Section 438 of the Code of Criminal Procedure by the learned Sessions Judge, Monghyr, to set aside the order passed by the learned Sub-divisional Magistrate, Jamui, on 7-7-1956, dropping the proceedings started under Section 147 of the Code of Criminal Procedure. There was a dispute between the parties in respect of certain lands including plot No. 1835 on which a temple of the deity Sri Netula Devi is situated. A proceeding under Section 107 of the Code of Criminal Procedure was first started with reference to this dispute, and at one stage it came to this Court when that proceeding was set aside. Subsequent to that, proceedings under Section 145 of the Code of Criminal Procedure were started in respect of the same dispute between the parties which ended on 16-4-1955, by an order passed by the learned Magistrate, by which, he attached the disputed properties under Section 146 of the Code of Criminal Procedure until a competent Civil Court determined the rights of the parties therein. The order shows that the case of the first party before the learned Magistrate in those proceedings was that Ghogho Pandey got two shares in the Bramhottar land under khata No. 380, on a portion of which is situated the temple of the deity. After Ghogho Pandey, the properties came to his widow, Mr. Bandho, on whose death, her sons-in-law, Kumar and Gokhul, began to look after the property including the worship in the temple. The Puja was alleged to be done by rotation. The first party claimed their share in the temple as well as the income. They admitted that the second party also had interest in the properties and were entitled to perform the Seva Puja for some days. The second party's case was that they were in possession of the temple jointly among themselves and they were jointly enjoying the income from the offerings of the temple. They asserted that the first party was not in possession. Thus, while according to the first party, both parties were enjoying possession, according to the second party, they alone were in possession of the temple and the offerings made to the deity in the temple. The learned Magistrate after discussing the evidence adduced by both parties, found that it was not proved which of parties before him was in exclusive possession or the land containing the temple and the income arising from the offerings made therein. He, therefore, referred the parties to the Civil Court and attached the properties in question. It is dear from this order that the subject-matter in dispute under Section 145 of the Code of Criminal Procedure was not only the land on which the temple was situated but also the income arising out of the offerings made in the temple, and one of the modes of possession of the land having the temple thereon was asserted by both the parties to be the appropriation of the offerings made to the deity in that temple.

(2.) Subsequent to this order passed under Section 143 of the Code of Criminal Procedure on 16-4-1955, a proceeding under Section 147 of the Code was initiated at the instance of Ambika Pandey and others as the first party who were second party in the proceedings under Section 145 of the Code referred to above. Gokhul Pandey and others who were the first party in the proceeding under Section 145, were impleaded as the second party in the present proceedings under Section 147 of the Code of Criminal Procedure. The learned Sub-divisional Magistrate of Jamui by his order dated 7-7-1956, has observed as follows :

(3.) I am afraid, the learned Sessions Judge has committed a mistake in regard to the subject-matter of the proceedings under Section 145 of the Code of Criminal Procedure relating to the disputed land containing the temple. As I have stated before, a perusal of the order passed under Sections 145 and 146 of the Code of Criminal Procedure in that case would clearly show that the parties claimed possession of the disputed land and went into evidence to show that the possession was by means of appropriation of the offerings made to the deity in the temple. The offerings, therefore, were inter-linked with that dispute. The nature and mode of possession of an immoveable property may differ from case to case; for example, there may be a dispute over a particular stretch of water which may be claimed to be used for irrigation in one case and in another for fishery. Similarly, there can be different uses in respect of particular land. The manner of use is thus very important in the disputes relating to immoveable property which attracts the provisions of Section 145 of the Code of Criminal Procedure. In the present case, the only kind of use in relation to the particular plot containing the temple was asserted by both the parties to be the appropriation of the offerings made to the deity. It is not open to a party, after an order has been passed in the proceeding, to initiate another proceeding in regard to the offerings alone and dissociated with the land containing the temple. That will lead to an anomaly. It is conceivable that a party not having a right of entry in the temple may have a share in the offerings made to the deity. In such cases offerings to the deity can be treated independent of the right of possession of the temple or the land, on which the temple stands, in which case, a proceeding under Section 147 of the Code of Criminal Procedure will be appropriate. But in a case like the present one, in which, the parties claim possession of the land containing the temple by entering noon the land, going I inside the temple worshipping the deity and taking the offerings, the offerings form a proof of possession and is linked with the dispute.